Loveridge v The Queen
[2014] HCATrans 285
[2014] HCATrans 285
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S216 of 2014
B e t w e e n -
KIERAN LOVERIDGE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
GAGELER J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 12 DECEMBER 2014, AT 11.51 AM
Copyright in the High Court of Australia
MR P.R. BOULTEN, SC: If the Court pleases, I appear with my learned friend, MS G.A. BASHIR, SC, for the applicant. (instructed by Aboriginal Legal Service)
MR J.H. PICKERING, SC: I appear for the respondent, your Honours. (instructed by Director of Public Prosecutions (NSW))
GAGELER J: Mr Boulten.
MR BOULTEN: Your Honours, the application relates to three questions that are set out at page 108 of the application book. They relate to questions of general importance for the administration of justice. The first matter I will deal with relates to the second question and that concerns an issue that relates to how a Court of Criminal Appeal deals with protean offences such as manslaughter and, for that matter, assault and assault occasioning actual bodily harm and the way that they use past decisions of courts in relation to similar matters.
If I could take the Court to paragraph 222 of the judgment of the Court of Criminal Appeal on page 86 of the application book, the court there expressed the opinion that the sentencing decisions that the sentencing judge had before him and which he considered:
represented nothing more than sentencing decisions in cases depending upon their particular facts and the circumstances of the offender in question. The sentencing decisions referred to at first instance did not demonstrate a range of sentences for so‑called one‑punch manslaughter –
At paragraph 225, the court went on to say that:
the sentencing decisions provided to his Honour in this case did not provide a range of sentences for so‑called one‑punch manslaughter cases.
There is, in truth, no range of sentences for offences of manslaughter which may be said to have a single common component relating to the mechanism of death . . . To the same effect, there is no range of sentences for manslaughter offences said to have been committed by use of –
a weapon of some sort. In the next paragraph they said that:
The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range ‑ ‑ ‑
In those circumstances, it seems that the Court of Criminal Appeal has held that there is actually no range for manslaughter with a common component and no range for any particular form of manslaughter, and that then raises an important question in the context of a Crown appeal where manifest inadequacy is contended for and found, what does the court have regard to to determine that the range was not reached?
GAGELER J: In the circumstances of the individual case it would be said against you.
MR BOULTEN: Yes, but that can best be done ‑ ‑ ‑
KEANE J: And the circumstance that particularly in this case it seems to be almost a misuse of language to describe this as a one‑punch manslaughter, given the number of assaults that your client committed on the evening in question.
MR BOULTEN: The cases that relate to offenders where there was such an appropriate focus nevertheless could have informed, and ought to have informed, both the sentencing judge and the Court of Criminal Appeal in its decision‑making.
GAGELER J: In what way - by a careful comparison of the facts of each case? Is that what you would have occur?
MR BOULTEN: That, and also to determine just exactly where in the hierarchy of seriousness of particular offences, even of particular types or generally, this particular matter fell. The Court has made fairly specific declarations about the need to look at comparable cases in both Hili and in Barbaro where in Hili the Court said that a court must have regard to other cases and that other cases can and should provide guidance and stand as a yardstick, and in Barbaro that a court must have regard to other cases, not necessarily just to look at the numbers – indeed, not primarily to look at numbers - but to see what principles led to the conclusions in those cases and then to determine exactly where the instant case stands in relation to all of that. This is particularly important in relation to manslaughter or other protean offences. In manslaughter, for instance, there are a range of types of manslaughter where there are different elements that need to be proved to establish the offence.
GAGELER J: You would have there to be a subcategory of manslaughter. What is that subcategory?
MR BOULTEN: Well, unlawful and dangerous act is a subcategory of manslaughter. Provocation is a subcategory, and so on and so forth. These are the subcategories that actually have different elements.
GAGELER J: Of course, but do you say that there is a subcategory of one‑punch cases?
MR BOULTEN: No, but there are unlawful and dangerous act cases that relate to alcohol‑fuelled violence that involved young offenders and which involved gratuitous violence, either in company or not, and they are all the sorts of cases that it is legitimate to look at in determining what principles led to the results and in determining what is an appropriate range. We contend that the trial judge did nothing wrong. The approach that he took was accepted by our opponents as being in accordance with principle.
If I can take the Court to what he said at application book 29 and in particular to paragraph 73 of his judgment. He referred to the cases that have been referred to him and, if I might interpolate, most of these cases were referred to him by the prosecution. There was a number that were referred to. He said about that that he did not propose to deal with them in great detail, but he bore in mind that what is required is “consistency of principle, not numerical equivalence” and drew upon what the Court of Criminal Appeal said in De La Rosa about the not establishing the correctness of a range.
In that context he then reviewed, in summary form, the facts and the principles that related to the cases that have been put before him. Admittedly, not any of them involved multiple victims, but they did inform the sentencing judge and ought to have informed the Court of Criminal Appeal about what is an appropriate range of factors and principles and then results to keep in mind in determining, firstly, what is the appropriate sentence in the first case, and then ultimately whether or not the sentence was manifestly inadequate.
If the Court of Criminal Appeal’s approach is correct, how is consistency going to be achieved for offences such as manslaughter? The applicant’s case is that the proposition in the cases of manslaughter and assault occasioning that there is no range is wrong. How then is manifest inadequacy going to be determined? This case has led to similar judgments in the Court of Criminal Appeal in New South Wales in that there is now a disavowal, as it were, of the legitimacy of looking at other cases and we have put ‑ ‑ ‑
KEANE J: No, not the legitimacy; just the necessity.
MR BOULTEN: I think it goes a bit further than that. If I could take the Court to Abbas [2014] NSWCCA 188, in paragraph 38, at the bottom of the paragraph, there is a disavowal of the use of statistics:
Nor is citation of other instances said to be comparable a proper approach –
That is not what the court said in Hili. In paragraph 39:
Comparisons between cases where the manslaughter includes the mental element for murder (but is not murder because there is provocation, excessive self‑defence or substantial impairment) and those in which, as in the present case, it does not, tend not to be fruitful.
Then at the top of the next page in paragraph 41:
A search for “comparable” cases can serve to do no more than highlight the variety of circumstances in which manslaughter is committed. For these reasons this Court has found that sentencing statistics for manslaughter offences are of such limited assistance –
Then there is a reference to Wood. Wood was recently decided and drew on Loveridge for the proposition that statistics should really be disregarded, and now it is creeping into comparable cases. This will be what happens generally in manslaughter cases.
GAGELER J: The reasoning in the Court of Criminal Appeal of which you complain is in the context of dealing with the manifest inadequacy ground of appeal and it is a precursor to the court going on to consider the particular features of the present case which are said in paragraph 228, page 88, to show “grave examples” of the offences. Now, is there some error in the way in which the Court of Criminal Appeal approached the particularity of this offence?
MR BOULTEN: They did not compare it with much, if anything. The finding that this was a grave example and then ultimately a very grave example of unlawful and dangerous act manslaughter was not set against any yardstick, it was moving to basically a completely fresh and intuitive approach, coupled with a disavowal that we are not just imposing a sentence that we would have imposed ourselves given the exercise of our own discretion.
The only case that was referred to as being a proposition supporting the fact that this was a serious example of unlawful and dangerous act manslaughter which deserved substantial punishment was Heitanen at paragraph 232, as we have set out. That was a case that involved the man who had a 20‑year record of violence. He was not 18‑years old and he was somebody who had been in prison before for violent offences.
Likewise, the reliance on Hoerler and in another point Blacklidge, they were perfect examples of cases where a sentencing court and a Court of Criminal Appeal found it very useful and in fact probably important to have regard to other forms of manslaughter cases of that particular type. Hoerler was a baby shaking case and Blacklidge was a substantial impairment case and in both instances the ultimate result was informed by a comparison with other comparable cases.
KEANE J: But the degree of assistance you get from that comparison depends on the facts and what you seem to be complaining about is the way in which the Court of Criminal Appeal in this case viewed the facts and the level of assistance that they drew from other cases. That seems to me to be what the Court of Criminal Appeal’s function is. It is to make those assessments. When they make an assessment of comparable cases which leads them to conclude that they are not very comparable, that does not seem to me to involve any apparent error of principle on the part of the Court of Criminal Appeal. They are just doing what they do.
MR BOULTEN: But, your Honour, the problem is that ultimately the finding was manifest inadequacy without there being a range. They have declared that there is no range, and how do you get there without some sort of idea of what the range is, and what actually is it that determines the range?
GAGELER J: Well, it is not a range for a category of offences. It is a permissible range within which reasonable minds might differ as to the appropriate sentence in this case.
MR BOULTEN: Well, they found that this was a grave example of manslaughter. How do you actually do that without comparing ‑ ‑ ‑
KEANE J: Well, you would probably start by saying that, given the number of assaults that occurred on the evening in question and the almost – the frivolity of it, the senselessness of it and the repetition of it are all features that make this case something quite unusual and they are features which strongly suggest the need for a sentence that reflects a level of specific deterrence and a concern for protection of the community.
MR BOULTEN: Even if so then that needs to be done also by reference to what would normally be the penalties that are attracted and what are the principles underlying those penalties for people who actually do not have those exact features. Here also, if I can just move quickly to something related to this argument – that is that there was a virtual moving away from anything that would have informed the court about the significance of this young offender being just 18 and his background.
In this instance there was a real problem about what was the relevance of the fact that he was somebody who had been on a probation order or on a bond and that he was 18 and had been in trouble before. It was brought to the court’s attention, both in the first instance and in the Court of Criminal Appeal that issues that relate to his dysfunctional background were of some significance.
Yet at paragraph 244 of the Court of Criminal Appeal’s judgment and at application book page 91, there was a distinction drawn between this offender and Carroll where this offender was described as someone who had “subjective circumstances” that “were not especially helpful to him” and in that regard the highlight was his record. He was said to be “a young man with a deprived upbringing”, then the court said:
However, he had prior convictions, including for offences of violence, and was subject to conditional liberty at the time of these offences.
That gave little or no work to do for the court in considering the principle that this Court had regard to in its decision in Bugmy. It has basically been put to one side.
GAGELER J: Well, it has been given a weight considered by the court to be appropriate in the particular subjective circumstances of this individual.
MR BOULTEN: That had some significant role to play, but this was an example of the court really giving lip service to what this Court said in Bugmy, in my respectful submission. That was an error. To use that word “However”, and then to put it to that side led the court to conclude that the appropriate principles underlying what was the appropriate range for this offender miscarried, in my respectful submission.
The error of principle that we rely on in totality principles as well is that there was a sweeping aside too of established understanding about crushing sentences. Can I take your Honours to paragraph 239 of the Court of Criminal Appeal’s judgment at application book 89 where the court referred to the issue of “crushing” saying that:
Courts are not unfamiliar with the descriptions of sentences as “crushing” ‑ ‑ ‑
but then went on to say that -
but that does not articulate some applicable test -
We submit that it may well. A crushing sentence should be avoided and the principle of totality may operate to mitigate such a sentence, particularly on an 18‑year old, particularly when determining whether the Crown has demonstrated manifest inadequacy. Totality had a very major – or should have had a major impact on an assessment of the pertinent sentences in the way that they were structured, which leads me to considerations of question number 1 in our application book concerning accumulation.
It is a matter of some significance for the administration of criminal justice and an issue that this Court has not previously looked at to determine just exactly what you do when you have a case that has five offences where there are similar sentencing factors that need to be taken into account in relation to the setting of the individual sentences, how much they should be repeated, how much they should then be repeated in the next offence, and then to work out how the accumulation of those sentences should be played out.
GAGELER J: Are not the principles in Pearce v The Queen the basic guide?
MR BOULTEN: Yes, indeed, yet here there was for instance a focus, say, on his breach of the bond and the breach of the bond that played out in a number of different ways. It led to a finding that there was insufficient regard to specific deterrence. It knocked out a challenge of finding on genuine remorse. It supported an increase in sentencing in various ways, but there was no moderation when it came to accumulation. The accumulation was very major and it led to a very large increase in the total effective sentence.
We also rely on the ground that relates to special circumstances here. That is a matter of general importance in New South Wales where there is a conflict, we say, between the approach of the court at the moment and the way that the Court of Criminal Appeal in Simpson determined that all factors that are relevant to the non‑parole period should be taken into account. That is good principle and we say it has been ignored and is of significant import to the general administration of sentencing in New South Wales.
GAGELER J: Thank you, Mr Boulten. We do not need to call on you, Mr Pickering.
Notwithstanding the arguments carefully advanced on behalf of the applicant, we are not satisfied that the decision of the Court of Criminal Appeal discloses any arguable error of sentencing principle. The application for special leave to appeal will be refused.
AT 12.13 PM THE MATTER WAS CONCLUDED